Tuesday, February 16, 2016

A current legislative proposal, introduced by Speaker Robin Vos, to change the funding mechanism for the statewide school voucher program have been widely mischaracterized. For example, a recent article in the Journal Sentinel suggests the "districts with voucher students face a funding cut" and that proposed funding mechanism for the statewide (not Milwaukee) voucher program could "cost" districts with voucher students (other than Milwaukee) $ 22 million dollars next year. An article yesterday said that, under existing law, districts are allowed to simply "recoup" the funds they lose due to participation of students in the choice program.It's true that current law permits districts to recoup reductions in state aid to pay for vouchers for children a district no longer educates, but it isn't the whole story. And, under the Vos amendment, districts would still be able to recoup aid reduction..Let's start with existing law. Although the districts may recoup the reduction in state aid attributable to a student departing for a private school, whether that reduction amounts to a "loss" depends on the circumstances. But many districts are doing much more than "recouping" what they have lost in state aid.Last June, my organization released a report concerning the contemplated statewide expansion of school choice. We pointed out that changes in the way that vouchers were funded statewide could create a "school choice bonus" for districts with students departing for private schools. This, we explained, was because districts could continue to count departing students for purposes of their revenue limit and state aid. State aid, in turn, would only be reduced by the amount of the voucher. Because this will invariably be less than the revenue limit, districts could receive a combination of state aid and local property tax revenue greater for each departing student than the amount by which their state aid would be reduced. Thus, while districts receive less total revenue, their revenue per student would - in almost all - if not all - instances, increase.Apparently some legislators believed that the funding formula as passed would permit districts to tax only to the extent of their lost revenue per departing student or that, in any event, districts would not levy up to the revenue limit for students that they no longer educated. But that's not what has happened.
According to the non-partisan Legislative Fiscal Bureau, most
school districts, which have children in the voucher program, have helped
themselves to the school choice "bonus" that we predicted and then
had the temerity to "blame" the voucher program for the excess taxes
that they chose to impose. The MacIver Institute highlights
this issue.The question is this: Should school districts be able to continue to receive state aid and levy taxes for students that they no longer must educate even if the sum of state aid and taxes exceeds the amount of revenue they lose for each departing student? Districts are not simply "recouping" lost funds. Those who choose to tax to the extent of their revenue limit are making up for what they have lost and then some.At very low levels of participation, it is possible that the savings attributable to departing students will be less than the voucher amount (and lost revenue) for those students. The impact won't be large but it may make sense - both for the school districts and taxpayer equity (it is not clear why there should not be a local component of voucher funding) to allow districts to recover some or all of the portion of their lost revenue. Of course, at higher levels of participation, a well managed district ought to be able to offset revenue losses because marginal costs should become closer to average costs and the aid reduction will always be substantially less than the average cost per student.In any event, the amendment to the law proposed by Speaker Vos would only change the timing of this school choice "bonus." Rather than allow school districts to count all choice students (kids that a district no longer educates) for purposes of state aid and taxing authority immediately, it "phases" in the counting of these students as would be the case if these were new students (and phases them "out" after they no longer attend a private school within the district). In other words, the Vos amendment only changes the timing of the school choice "bonus."The public narrative has been that current law simply drains the public schools and the amendment would make it worse. It's not that simple.Cross posted at Purple Wisconsin.

Sunday, February 14, 2016

This weekend, America lost a great man. Justice Antonin Scalia was, more than anything else, committed to law as a discipline; as a way of resolving questions that is distinct from - and more limited than - politics, economics and moral philosophy. Judges, in his view, are not charged with the capacious inquiry into what is "right," but a more limited duty to decide what is and is not legal.

To that end, he championed interpretive methods - ways of deciding cases - that limited judicial power and discretion. He was a champion of "textualism," arguing that constitutional and statutory language should be read to mean what it says. (It would surprise the general public to know that this common sense approach is quite controversial among certain elements of the legal community.) Justice Scalia was committed to the notion that, if the language of a law is not clear, judges should not simply give it their preferred meaning, but should attempt to discern its "original meaning," i.e., determine what it meant to those who adopted it and gave it the force of law.

As an advocate of plain meaning and originalism - two ideas that were met with derision among legal sophisticates when I attended law school - Justice Scalia moved the law. While I did always agree with him - I thought his view of executive and administrative power was too generous and his views on what cases can and cannot brought in federal court too limited - we are closer to a proper understanding of our Constitution than we were thirty years ago.

Because he believed in judicial modesty, Justice Scalia would not have wanted the selection of his successor to be the existential battle that it is likely to become. He did not believe that courts should have enough power and discretion to make the question of who sits on them as important as it has become.

But it is.

While the Supreme Court is routinely described as "conservative," it has a very disciplined bloc of four members firmly ensconced in the doctrines and understanding of the legal left. Justices Ginsburg, Breyer, Sotomayor and Kagan would dramatically change our constitutional jurisprudence. On a long list of issues - affirmative action, free speech, freedom of religion, federalism - a fifth vote for this group will change current doctrine.

The Senate is not obligated to allow President Obama to change the Court in this way. It's right to "advise and consent" - its duty to exercise independent judgment on judicial nominees - says otherwise. That duty is not limited to passing on a nominee's legal qualifications. It is also free to insist that a nominee have demonstrated a proper understanding of the Constitution. It is obligated to ensure that a nominee have a commitment to federalism, the separation of powers, individual liberty and the written Constitution.

If the Senate is unable to confirm the President's nominee, it will not be "obstructing" the process but playing its constitutional duty in that process. It has absolutely no obligation to agree to the President's choice and, indeed, has a duty to exercise its independent judgment.

It has been eighty years since a vacancy arising in the year of a Presidential election has been filled in that year. In 1956, President Eisenhower made a recess appointment of William Brennan, but Justice Brennan was nominated and confirmed in 1957 - after the President was re-elected. In 1968, Chief Justice Earl Warren announced his retirement and President Lyndon Johnson - like Barack Obama a lame duck - nominated Abe Fortas to replace him. Fortas' nomination was blocked by filibuster. The people elected Richard Nixon and it was Nixon who nominated Warren Burger to fill the vacancy and the next Congress that confirmed him.

The future direction of the Court is in the balance and the nominee is likely to serve for a generation. With the presidential election upon us, the people ought to be heard on who will fill this vacancy.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.